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Voting Rights Act under fire at Supreme Court

Solicitor General Donald Verrilli, who defended the law, urged the justices not to second-guess Congress’s assessment in 2006 that the law was still needed. “It would be extraordinary to look behind the judgment of Congress,” he said.

Chief Justice Roberts asked no questions at all during Rein’s arguments, saving all his probing for Solicitor General Donald Verrilli’s defense of the statute.

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“Is it the government’s submission that the citizens of the South are more racist than the citizens of the North?” Roberts asked.

“It is not and I don’t know the answer to that,” Verrilli replied.

Roberts said that African-American voters in Massachusetts, which is not covered by the pre-clearance requirement, are less likely to be registered and less likely to vote than black voters in covered states like Mississippi.

Justice Samuel Alito also went state by state, suggesting it made little sense to require pre-approval of voting changes in Virginia and Arizona, but not in Tennessee or Nevada.

Justice Anthony Kennedy, who serves as a swing vote in some close cases, seemed to view the law as — at this point — an unfair intrusion on states that should have the authority to govern their own affairs.

“Section 5 was utterly necessary in 1965. No doubt about that,” Kennedy said. “The Marshall Plan was very good, too, the Morrill Act, the Northwest Ordinance, but times change.”

Kennedy said Congress “didn’t have the time or energy” in 2006 to weed through the states individually and decide which should still be covered so it punted and adopted the earlier formula.

“There here is a federalism interest in each State being responsible to ensure that it has a political system that acts in a democratic and a civil and a decent and proper and a constitutional way,” Kennedy said

Based on their questions and statements Wednesday, Roberts, Scalia, Kennedy and Alito seemed likely to strike down the disputed part of the Voting Rights Act.

Justice Thomas, as is his custom, asked no questions Wednesday. However, he wrote a dissenting opinion in 2009 that argued that the law as written is unconstitutional. Together, those justices would have the five votes needed to knock out the provision.

Justice Stephen Breyer was harder to read, but seemed to be leaning in favor of deferring to Congress’s judgment that the rule was still needed.

The pre-clearance requirement currently applies in most or all of nine states and lesser portions of seven others. The bulk of the population covered by the measure is in southern states. It requires every change in voting districts and procedures — from the relocation of a polling place to a new voter identification law to a statewide redistricting — win the approval of the Justice Department or a panel of federal judges before taking effect.